September 29, 2011 at 3:26 pm EDT | by Chris Johnson
Appeals court dismisses ‘Don’t Ask’ litigation as moot

A federal appellate court panel on Thursday dismissed litigation challenging the constitutionality of “Don’t Ask, Don’t Tell” as moot now that the military’s gay ban has been lifted from the books.

In a decision dated Sept. 29, a three-judge panel on the U.S. Ninth Circuit Court of Appeals dismissed the challenge to “Don’t Ask, Don’t Tell,” or Section 654, in the case of Log Cabin v. United States based on precedent in previous federal litigation.

“This suit became moot when the repeal of section 654 took effect on September 20,” the opinion states. “If Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654.”

The court concludes that the lifting of “Don’t Ask Don’t Tell” on Sept. 20 gave Log Cabin everything it hoped to achieve as a result of its lawsuit and a controversy no longer exists for judges to consider.

In addition to declaring the lawsuit moot, the decision vacates the decision that U.S. District Judge Virginia Phillips placed last year on “Don’t Ask, Don’t Tell” enjoining the U.S. government from enforcing the military’s gay ban.

The three-judge panel within the Ninth Circuit was made up of Chief Judge Alex Kozinski and Circuit Judges Kim Wardlow and Richard Paez. The decision was a per curiam opinion, meaning the judges agreed to it as group acting collectively and anonymously.

Dan Woods, a partner at White & Case who’s representing Log Cabin, vowed to take the litigation before the entire Ninth Circuit.

“We are, of course, disappointed by today’s ruling, but we will continue to fight on for the constitutional rights of all people impacted by ‘Don’t Ask, Don’t Tell,'” Woods said. “This is an important issue for all Americans, and we anticipate seeking a re-hearing before the full Ninth Circuit.”

Even though “Don’t Ask, Don’t Tell” has been lifted, plaintiffs continued with the litigation on the basis that a ruling that the ban was unconstitutional would prohibit future reinstatement of the law. Republican presidential candidates Michele Bachmann and Rick Santorum have said they’d reinstitute “Don’t Ask, Don’t Tell” if elected to the White House.

A ruling that “Don’t Ask, Don’t Tell” was unconstitutional could also aid service members discharged under the law seeking back pay, reinstatement or a change in discharge status.

The decision came down from the Ninth Circuit panel after the U.S. Justice Department asked the court to dismiss the lawsuit in the wake of the end to “Don’t Ask, Don’t Tell.”

R. Clarke Cooper, executive director of the National Log Cabin Republicans, said President Obama “should be ashamed that he is responsible” for taking part in the undoing of the district court’s decision on the matter.

“The ruling in Log Cabin Republicans v. United States is the reason why Congress finally acted to end this failed and unconstitutional policy,” Cooper said. “This decision by the Ninth Circuit denies more than 14,000 discharged gay and lesbian servicemembers an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of servicemembers’ rights. The court can vacate this ruling, but that does not change the fact that ‘Don’t Ask, Don’t Tell’ was unconstitutional.”

A White House spokesperson deferred comment on the decision to the Justice Department. Tracy Schmaler, a Justice Department spokesperson, had no immediate comment.

Alex Nicholson, executive director of Servicemembers United and sole named veteran plaintiff in the lawsuit, called the ruling “unfortunate.”

“This resolution to the Log Cabin lawsuit is unfortunate for lesbian and gay service members and those dismissed under this policy, as there remains no law or ruling prohibiting future discrimination of this sort in the armed forces,” Nicholson said. “Log Cabin has done a comendable job in pursuing this case over the years, and I am proud to have served as the sole named veteran plaintiff in this case for Log Cabin, which enabled the case to continue on to this point.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the Ninth Circuit panel’s decision isn’t a surprise, but still disappointing.

“This decision from the Ninth Circuit Court of Appeals was not unexpected, but we do regret that the court did not uphold Judge Phillips’ ruling that ‘Don’t Ask, Don’t Tell’ was unconstitutional,” Sarvis said. “Notwithstanding today’s decision, the Log Cabin case, like the Cook case before it, played a major role in persuading policy makers to repeal [‘Don’t Ask, Don’t Tell.’]”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • Continuing to defend DADT required Obama, Inc., to, yet again, contradict themselves:

    Last February, in the process of explaining their total reversal on fighting DOMA cases, US Attorney General Eric Holder said on behalf of Obama: “[The Supreme Court] has rendered a number of decisions that set forth the criteria THAT SHOULD INFORM THIS AND ANY OTHER JUDGMENT as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s ‘ability to perform or contribute to society’. … Indeed, WHEN THE COURT RULED THAT GENDER-BASED CLASSIFICATIONS WERE SUBJECT TO HEIGHTENED SCRUTINY, WOMEN ALREADY HAD WON MAJOR POLITICAL VICTORIES such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).”

    OF COURSE, that was “any other judgment” except one about DADT. Barack Obama can twist himself in so many ways he could star in his own Cirque du Soleil show. Rationally, logically one can’t have it both ways—unless one is the military and a Democratic President is just as willing to be your two-faced Piss Boy as every Repug President has.

    Barack the Ripper—stabbing tens of thousands of gays who were discharged in the back by declaring that those who wrote DADT were right—they DID hurt their country’s national security—and doing the same thing to any currently serving who imagined that with repeal would come equal treatment IN the military. Now the miitary can continue to deny them the same protections against harassment and discrimination in, e.g., assignments, evaluations, promotions, that blacks, women, et al. have, AND their partners benefits NOT banned by DOMA. And, of course, cutting to shreds the ONLY thing that could have prevented a future Repug President or Congress from bringing back some form of the ban.

    “At what point do we say ‘ENOUGH’? At what point do we stand up and say we will not allow it to happen anymore? Enough is enough!” – Harvey Milk.

    Today is that day for me. Only if Christ appears in a burning bush and guarantees me that, otherwise, whatever Repug will win will I vote for Barack Obama next year.

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